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Category Archives: Impairment

The National Task Force on Lawyer Well-Being has released The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, a report with 44 recommendations “for minimizing lawyer dysfunction, boosting well-being, and reinforcing the importance of well-being to competence and excellence in practicing law.” (The task force was initiated by the ABA Commission on Lawyer Assistance Programs, the National Organization of Bar Counsel, and the Association of Professional Responsibility Lawyers.) The recommendations have 5 central themes: “(1) identifying stakeholders and the role each of us can play in reducing the level of toxicity in our profession, (2) eliminating the stigma associated with help-seeking behaviors, (3) emphasizing that well-being is an indispensable part of a lawyer’s duty of competence, (4) educating lawyers, judges, and law students on lawyer well-being issues, and (5) taking small, incremental steps to change how law is practiced and how lawyers are regulated to instill greater well-being in the profession.”

The report includes several recommendations related to judges:

Communicate that well-being is a priority

Develop policies for impaired judges

Reduce stigma of mental health and substance use disorders

Conduct judicial well-being surveys

Provide well-being programming for judges and staff

Monitor for impaired lawyers and partner with lawyer assistance programs

For example, with respect to developing policies for impaired judges, the report explains:

It is essential that the highest court and its commission on judicial conduct implement policies and procedures for intervening with impaired members of the judiciary. For example, the highest court should consider adoption of policies such as a Diversion Rule for Judges in appropriate cases. Administrative and chief judges also should implement policies and procedures for intervening with members of the judiciary who are impaired in compliance with Model Rule of Judicial Conduct 2.14. They should feel comfortable referring members to judicial or lawyer assistance programs. Educating judicial leaders about the confidential nature of these programs will go a long way in this regard. Judicial associations and educators also should promote CoLAP’s judicial peer support network, as well as the National Helpline for Judges Helping Judges.

Several recent events demonstrate that the adverse effect of judicial impairments on individual judges and the judiciary is not theoretical. For example, in July, the New York City medical examiner’s office ruled that the death of New York Court of Appeals Judge Sheila Abdus-Salaam was a suicide; her body had been found in the Hudson River.

* * *In October 2014, the Chief Justice of the 5th Circuit Texas Court of Appeals filed a complaint with the State Commission on Judicial Conduct alleging that one of the justices on the court had engaged in conduct that was inconsistent with his judicial obligations, including failure to participate in en banc consideration of cases, failure to prepare for oral arguments, committing to specific outcomes during oral argument, erratic behavior regarding the resolution of cases, failure to perform writ duty, combative interactions with staff and colleagues, attempting to defer his judicial authority to a staff member, exposing the court’s computer network to viruses, frequent unexplained absences, and behavior demonstrating incompetence. Shortly after the Commission notified the judge that it intended to investigate the allegations, the judge was admitted to an alcohol treatment center where he stayed 6-8 weeks. In an appearance before the Commission in October 2015, the judge testified about his past and present mental and physical health, including his continuing efforts to treat his alcoholism. In November, the Texas Supreme Court granted an agreed motion to suspend the judge without pay.

In October 2016, the Commission filed a notice of formal proceedings alleging that the judge had committed misconduct or, alternatively, suffered from a permanent mental or physical disability that interfered with his ability to perform duties. According to the notice, a doctor who had performed a physical and mental health evaluation found that the judge had demonstrated problems beginning as early as 2013 and displayed an impaired condition and intense feelings of anger in 2014. Emphasizing “that brain atrophy, regardless of the etiology, is not likely to be reversed,” the doctor concluded that the judge “has some permanent damage that is apparent in his cognitive function . . . . His psychological testing showed a mix of disinhibited response patterns, poor psychological boundaries and lapses in reasoning and thought processes that bordered on psychotic processing.”

The day after the Commission filed the notice, the judge resigned, and, based on his agreement never to seek or hold judicial office, the Commission agreed not to pursue disciplinary proceedings against him. Inquiry Concerning Lewis, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct October 12, 2016).

* * *Accepting the recommendation of a special committee, the Judicial Council for the U.S. Court of Appeals for the 5th Circuit concluded an investigation of a judge after she retired for disability. In re Complaint Regarding Judge Minaldi, Order and memorandum of reasons (5th Circuit Judicial Council August 23, 2017). A complaint that the judge might have a disability had been filed in April 2016. A special investigating committee retained medical experts to evaluate the judge. Based on the special committee’s report, the Council “reviewed the compelling and uncontroverted medical evidence pertaining to [the judge’s] permanent disability . . . .”

According to news reports, the judge had been on medical leave since December after reports of a pattern of unusual behavior and mistakes on routine matters on the bench. The Chief Judge of the 5th Circuit had ordered the judge to get treatment for alcoholism, she went to rehab in January, and she had been in an assisted living facility specializing in “memory care” since February. The judge had been diagnosed with “alcohol use disorder” and “severe Wernicke-Korsakoff syndrome,” a degenerative brain disorder linked to alcohol abuse.

* * *Reviewing a decision of the Judicial Council of the 6th Circuit, the Judicial Conduct and Disability Committee of the U.S. Judicial Conference publicly reprimanded a judge for ordering a magistrate judge to show cause why a filing deadline in a social security case had not been met and for refusing to cooperate with the special investigating committee’s request that he undergo a mental health examination. In re Adams, Memorandum of decision (Judicial Conduct and Disability Committee of the U.S. Judicial Conference August 14, 2017). However, the Committee concluded that it could not affirm the Council’s order removing the judge’s docket because there was no evidence he was unable to adjudicate cases.

In 2011, the judge had issued a scheduling order requiring magistrate judges to file a report and recommendation in social security cases within 270 days. Due to a clerical error, a magistrate judge missed the deadline in a case in early 2012. Rather than trying to resolve the issue informally, the judge ordered on a Friday that the magistrate judge show cause by 4:00 p.m. the next Monday why the magistrate judge should not be held in contempt or otherwise sanctioned for failing to comply with the scheduling order. In an e-mail to the judge on Saturday evening, the magistrate judge took responsibility for the mistake. The magistrate judge also began arranging legal representation for a hearing and spent the weekend completing the report and recommendation. In an order on Monday, the judge noted the clerical error and found the show cause order to be “satisfied.”

4 other judges filed a complaint alleging that Judge Adams’s show cause order and “other ongoing disruptive behavior directed at other judges in the Northern District of Ohio” constituted “conduct prejudicial to the effective and expeditious administration of the business of the courts.” The Judicial Conference Committee noted that, after the court did not select Judge Adams’s preferred candidate for a vacant magistrate judge position in 2008, he had “repeatedly expressed hostility and contempt toward the court’s magistrate judges” and rejected communications with them, requiring that they go through his staff. Judge Adams would not allow the ceremonial courtroom to be used for that magistrate judge’s investiture and did not attend the ceremony, interact with the magistrate judge, assign her any work, or meet with her despite her numerous attempts to initiate contact. He also refused to meet with another new magistrate judge, instead sending an e-mail explaining he expected “prompt decisions” in social security cases and criticizing the “work ethic” of the other magistrate judges.

In addition, the Judicial Conference Committee noted “an increasingly strained relationship between Judge Adams and his colleagues” after 2008, with Judge Adams “withdraw[ing] from relations” with the other district judges and “routinely attempt[ing] to undermine” their administration of the court’s business. When he had concerns at different times about the appointment of a new magistrate judge, the purchase of iPads, and reimbursement of travel expenses for judges to attend the unveiling of a senior district judge’s portrait, Judge Adams did not communicate directly with his colleagues but instead complained in letters to committees of the U.S. Judicial Conference, that, for example, filling a soon-to-be vacant magistrate judge’s position was “neither necessary, nor fiscally responsible.”

In response to the other judges’ complaint, the acting Chief Judge appointed a special investigating committee. The scope of the investigation was subsequently expended to consider whether Judge Adams was suffering from an emotional or mental disability. The special committee asked Judge Adams to provide records of any mental or emotional health testing or treatment he had undergone and to submit to psychological testing, but the judge refused. The forensic psychiatrist retained by the special committee concluded that the available data suggested, not a mental state of psychotic proportions, but “significant personality traits that may have contributed to the current concerns.”

Based on the special committee’s report, the Judicial Council found that the judge’s issuance of the show cause order and his refusal to cooperate with the request that he undergo a mental health examination constituted misconduct.

On review, the U.S. Judicial Conference Committee rejected the judge’s argument that sanctioning him for the show cause order violated the ban on reviewing judicial decisions. The Committee noted that the Judicial Council had found, not that the show cause order was not legal, but that it had been motivated by the judge’s hostility and animus toward the magistrate judges and had had prejudicial effects on the specific magistrate judge, the district’s magistrate judges’ performance generally, and the district as a whole. The Committee concluded that the Judicial Council’s findings of fact were not clearly erroneous.

The Judicial Conference Committee also found that the special committee was justified in requiring Judge Adams to undergo a mental health examination and that his refusal to cooperate with the request constituted misconduct. The Committee held that the special committee’s request was authorized by “the Judiciary’s inherent authority to regulate its affairs, . . . including the conduct and fitness for duty of federal judges, and from its broad investigatory powers and decisional discretion” under the Judicial Conduct and Disability Act of 1980 and the Rules for Judicial-Conduct and Judicial-Disability Proceedings. The Committee concluded that the judge’s failure to cooperate “impeded the Judicial Council’s ability to conduct a thorough and conclusive investigation” and was, therefore, “prejudicial to the effective and expeditious administration of the business of the courts.” The Committee acknowledged the judge’s “indisputable privacy interest relating to his mental health” but evaluated that “interest in the context of his role and responsibilities as a federal judge,” emphasizing that “a federal judge’s sound mental health is essential to his or her fulfillment of all judicial duties.”

The Committee also rejected the judge’s argument that the evidence was not sufficient to warrant the examination, noting “Judge Adams’s demonstrated hostility and animus toward the court’s magistrate judges, which has been ongoing for years” and his “unfounded suspicion of his colleagues and obstruction of effective court administration with respect to magistrate judges in the Northern District of Ohio.” The Committee stated it shared the Judicial Council’s view that “input from an independent medical expert is necessary to fully and fairly assess Judge Adams’s mental condition and fitness to continue to serve as a judge.”

The Committee noted that it “anticipate[d]” that the judge would expeditiously comply with the order that he submit to a mental health examination. On September 15, the organization Judicial Watch filed a federal lawsuit on behalf of Judge Adams challenging the decision.